In the News
Reason: Privacy for Rights Isn’t a Trade Americans Should Be Forced To Make
By Alex Baiocco
While some voters proudly display campaign yard signs or bumper stickers, many others keep their electoral choices to themselves.
Why? That’s none of your business. Nor is it the business of the federal government.
Sure, many elected officials would love to know the names of everyone who voted for their opponents. But does that justify eliminating the secret ballot? Should voters have their names, addresses, occupations, and employers published online alongside every vote they’ve ever cast? Should the right to vote be contingent on a voter’s identity being made public?
Of course not.
But federal law requires precisely such a tradeoff when it comes to the exercise of a related constitutional right: the First Amendment right to donate to a political campaign…
Equally alarming are calls to mandate disclosure for nonprofit organizations engaged in issue advocacy.
In many cases, calls for nonprofit donor disclosure come from sitting lawmakers who want to know who is funding advocacy that they disagree with. In New Jersey, for example, several powerful lawmakers proposed a disclosure mandate for certain nonprofits. Why? The Senate President, a political enemy of Governor Phil Murphy, was angry with a group that supported the Governor’s budget, and that group did not voluntarily expose its supporters. So the Legislature decided to force many nonprofits to disclose. Groups across the ideological spectrum warned that the state’s retaliatory bill would chill advocacy, but it still became law. Now, the American Civil Liberties Union and Americans for Prosperity are suing…
The United States boasts one of the most robust civil societies in the world. Don’t put that at risk in order to serve the shortsighted interests of politicians.
New from the Institute for Free Speech
Federal Court Halts Enforcement of New Jersey Nonprofit Disclosure Law
By Ryan Morrison
It was a good day for the First Amendment in New Jersey last week, as a federal district court issued a preliminary injunction to stop enforcement of a new state law that targets donors to civil society groups.
In Americans for Prosperity v. Grewal, Americans for Prosperity (“AFP”) filed suit to halt enforcement of Senate Bill No. 150, which requires an organization to disclose the identifies of its supporters if it spends $3,000 or more on issue advocacy or communicating nonpartisan factual political information between January and Election Day in a given year. AFP argued that the law chills First Amendment rights by deterring potential contributors from donating and that the Supreme Court has never approved this type of regulation for issue advocacy or dissemination of nonpartisan information. The district court agreed and enjoined New Jersey officials from enforcing the law.
Quoting Buckley v. Valeo, the court recognized that “compelled identification of contributors to independent groups that expend money on political causes ‘can seriously infringe’ the rights to privacy of association and to belief guaranteed by the First Amendment.” Therefore, laws like S. 150 must be examined under “exacting scrutiny” to determine if they support a vital government interest in ways that do not unnecessarily burden a nonprofit’s political speech.
After reviewing the law, the court concluded that the measure did not evidence “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” The court further noted that the Supreme Court has found a substantial relationship for regulating “electioneering communications” – speech that refers to a clearly identified candidate for office made within several weeks of an election – but S. 150 went beyond this type of regulation with a scope that had “few, if any, limitations,” as the law also covers communications which consist of merely “providing political information.”
Congress
The Hill: House Democrats introduce new legislation to combat foreign election interference
By Maggie Miller
A group of House Democrats led by Administration Committee Chairwoman Zoe Lofgren (Calif.) on Tuesday introduced new legislation aimed at combating foreign efforts to interfere in U.S. elections.
The SHIELD Act would require campaigns to report “illicit offers” of election assistance from foreign governments or individuals to both the FBI and the Federal Election Commission (FEC), and also take steps to ensure that political advertisements on social media are subject to the same stricter rules as ads on television or radio.
The bill classifies the “offering of non-public campaign material to foreign governments and those linked with foreign governments and their agents as an illegal solicitation of support,” while also closing gaps that allow foreign investment in aspects of U.S. elections…
The SHIELD Act was introduced the same day the Senate Intelligence Committee released the second of its reports on Russian interference efforts during the 2016 election, with volume two focused on Russian social media disinformation campaigns.
The committee recommended steps for Congress, President Trump, and social media companies to take to prevent the spread of disinformation in the upcoming 2020 elections, and found that Russian actors, at the direction of the Kremlin, engaged in a far-reaching disinformation campaign in the lead-up to the 2016 elections.
Online Speech Platforms
New York Times: Facebook’s Hands-Off Approach to Political Speech Gets Impeachment Test
By Cecilia Kang
The 30-second video ad released by the Trump campaign last week is grainy, and the narrator’s voice is foreboding. Former Vice President Joseph R. Biden Jr., it says, offered Ukraine $1 billion in aid if the country pushed out the man investigating a company tied to Mr. Biden’s son.
Saying it made false accusations, CNN immediately refused to air the advertisement.
But Facebook did not, and on Tuesday, the social network rejected a request from Mr. Biden’s presidential campaign to take it down…
In a letter to the Biden campaign, Facebook said the ad, which has been viewed five million times on the site, did not violate company policies. Last month, the social network, which has more than two billion users, announced that politicians and their campaigns had nearly free rein over content they post there.
Even false statements and misleading content in ads, the company has said, are an important part of the political conversation.
“Our approach is grounded in Facebook’s fundamental belief in free expression, respect for the democratic process, and the belief that, in mature democracies with a free press, political speech is already arguably the most scrutinized speech there is,” Facebook’s head of global elections policy, Katie Harbath, wrote in the letter to the Biden campaign…
The company’s position stands in contrast to CNN, which rejected two ads from the Trump campaign last week, including the one the Biden campaign asked Facebook to take down. The cable channel said it rejected the ad because it “makes assertions that have been proven demonstrably false by various news outlets.”…
The Biden campaign also urged Fox News to reject the Trump campaign ad last week. But the cable channel declined to do so, saying that it was “not in the business of censoring ads from candidates on either sides of the aisle.”
The ad has also appeared on YouTube and Twitter. A spokesman for Twitter said on Tuesday that the ad complied with its policies. A YouTube official likewise said the ad complied with its policies.
The Hill: Anti-Trump spice company is major buyer of impeachment Facebook ads: analysis
By Morgan Gstalter
A Wisconsin-based spice company has been the second-largest buyer of impeachment ads on Facebook in recent days, second only to President Trump himself, according to a new analysis released Tuesday.
Penzeys Spices in Wauwatosa, Wis., has spent $92,000 on pro-impeachment ads between Sept. 29 and Oct. 5, according to data compiled by Bully Pulpit Interactive, a Democratic communications agency, and published by Axios.
By comparison, the Trump campaign shelled out $718,000 to defend the president after House Democrats launched an impeachment inquiry last month over his dealings with Ukraine, while billionaire philanthropist and Democratic presidential candidate Tom Steyer was the third top spender, dishing out $86,000 on anti-Trump impeachment ads.
Disclosure
Center for Responsive Politics: Presidential contenders still not disclosing bundlers
By Karl Evers-Hillstrom
In a break from tradition and a blow to transparency, presidential candidates are still not revealing information about the well-connected donors helping them raise campaign cash.
Federal candidates are not required to disclose information about bundlers – elite fundraisers who solicit contributions to a candidate from wealthy friends, business associates and other contacts – unless the bundler is a federal lobbyist. However, previous presidential candidates such as George W. Bush, John McCain, Barack Obama and Hillary Clinton voluntarily disclosed at least some information about their bundlers.
As with his 2016 campaign, President Donald Trump is hiding the fundraisers who are powering his 2020 reelection bid. And Trump’s Democratic opponents appear to be following his lead.
None of the 2020 Democrats have released comprehensive information about their big-dollar fundraisers. South Bend, Ind., Mayor Pete Buttigieg is the only candidate to disclose a list of bundlers, but it doesn’t include any information about how much money each bundler raised, and has not been updated since April.
A coalition of 16 pro-transparency organizations, including the Center for Responsive Politics, sent a letter Wednesday to 23 major Democratic and Republican presidential candidates urging them to disclose their big-money campaign bundlers.
“Implementing a robust bundler disclosure system that publicly displays information about all individuals who raise $50,000 or more for your campaign would help demonstrate your commitment to transparency as you seek your party’s presidential nomination,” states the letter, authored by campaign finance reform organization Issue One.
Free Speech
Reason (Volokh Conspiracy): Philadelphia 76ers Fans Ejected from Preseason Game for Supporting Hong Kong
By Jonathan H. Adler
Last night, at an NBA preseason game in Philadelphia between the Philadelphia 76ers and the Chinese Basketball Association’s Guangzhou Loong-Lions, two fans were reportedly ejected for showing support for freedom in Hong Kong…
According to multiple press reports, security officials at the Wells Fargo Center first confiscated the fans’ “Free Hong Kong” and “Free HK” signs. Then, when one of the fans responded by yelling “Free Hong Kong,” they were removed from the arena. If these reports are accurate, these actions are unconscionable.
The NBA’s posture toward China is bad enough, but it’s particularly troubling to hear of such events in Philadelphia (birthplace of the Declaration of Independence) at a 76ers game (given the inspiration for the teams name) and in an arena owned by Spectacor, the company founded and formerly owned by noted anti-communist Ed Snider (the same Snider who didn’t want his Philadelphia Flyers to have to play the Soviet Union’s Red Army team, leading to one of the most famous hockey games of all time). Adam Silver claims the NBA supports free speech, but actions speak louder than words…
Statements issued by the Philadelphia 76ers and the Wells Fargo Center claim the two fans were ejected for disruptive behavior. From an NBC10 news report:
In a statement on Wednesday, the team said Wells Fargo Center security staff made the decision to eject the couple “following multiple complaints from guests and verbal confrontations with others in attendance….”
The Wells Fargo Center, in its own statement to NBC10, said “After three separate warnings, the two individuals were escorted out of the arena without incident. The security team employed respectful and standard operating procedures.”
Fundraising
New York Times: In Shift, Warren Says She’ll Forgo Big Money Events if Nominated
By Shane Goldmacher
From the day Ms. Warren announced her plan to skip traditional fund-raisers in February, she had said the pledge only applied to the primary. “I do not believe in unilateral disarmament,” she said then on MSNBC.
But she told CBS News in an interview posted on Tuesday evening that, even as President Trump has set fund-raising records, she would not change how her campaign raises money if she won the Democratic nomination.
“No, I will not be forced to make changes in how I raise money,” Ms Warren said. “Look, for me this is pretty straightforward. Either you think democracy works and electing a president is all about going behind closed doors with bazillionaires and corporate executives and lobbyists and scooping up as much money as possible. Or you think it’s about a grass-roots, let’s build this from the ground up.”
After her initial response, CBS’s Zak Hudak asked if that was Ms. Warren’s position “no matter how much money Donald Trump is raising.”
“Yeah I’m not going to do the big-dollar fund-raisers. I’m just not going to do it,” Ms. Warren said. “The whole notion behind this campaign is that we can build this together. And that’s exactly what we’re doing.”…
Ms. Warren’s campaign said in a statement that her position was not a reversal but “a clarification since the original version was a little vague.” The campaign said that she would ensure state and national parties “have the resources they need,” if nominated…
Previously, Ms. Warren had been clear that her pledge applied only to the primary. MSNBC’s Chris Hayes asked her that directly when she announced it (“Yes,” Ms. Warren replied). And in an interview with The New York Times over the summer, Ms. Warren said, “It’s primaries. This is Democrat against Democrat. I don’t believe in unilateral disarmament.”
Washington Free Beacon: Bullock Violated Rules in His Campaign Finance Proposal
By Elizabeth Matamoros
Presidential candidate Steve Bullock’s (D., Mont.) campaign finance plan would prevent members of Congress from fundraising before completing half their term-a rule his gubernatorial campaign broke, state election records indicate.
Bullock announced his plan during an interview with MSNBC Live host Ali Velshi.
“I want people that get elected and sent to Washington, D.C., for just half of the time, half of their term, to actually focus on doing their job,” Bullock said.
“So what I would make it is if you’re a senator, you can’t actually start running for office or raising money until three years in. During that three years, I’d expect you to actually talk to your constituents, attend committee meetings, maybe even build relationships with folks across the aisle,” he said.
Bullock told Velshi that elected officials in Montana close their campaign accounts after their election.
“Even a state like Montana, what we do after we get elected-we have to close down our campaign account,” he said.
But records show that Bullock set up his 2016 reelection campaign account in August 2013, just seven months after first being elected governor.
Within his first two years, Bullock raised $318,822, according to records retrieved from the Montana Campaign Electronic Reporting System.
The records also show that while Bullock’s presidential campaign is not accepting corporate PAC money, his gubernatorial campaign did.
Political Parties
Insider NJ: The 2002 Reform Law and Its Impact On Campaign Finance
By Jeff Brindle
The modern era of campaign finance law and spending began with the enactment of the Bipartisan Campaign Reform Act (BCRA) in 2002.
Known as McCain/Feingold after the bill’s sponsors, Senators John McCain and Russel Feingold, the law ushered in an era of independent group dominance of federal elections, and subsequently, state-wide and local elections…
Though well intentioned, the law would have unintended consequences. For one, BCRA served as an open invitation for independent, outside groups to enter the pantheon of national politics. And second, it ushered in an era of endless lawsuits and unsettled campaign finance law.
On the first point, BCRA set off an explosion of independent spending by prohibiting national political parties from receiving and spending unregulated soft money donations. Instead, donations to national political parties were now subject to contribution limits, making them “hard” money.
As a result, groups and individuals that used to write big checks to the national parties soon began spending heavily on their own in national elections. During the eight years after the law’s enactment, the independent campaign activity by these special interest factions increased over 1000 percent.
Candidates and Campaigns
The Hill: Sanders plan would end ‘greed-fueled, corrupt corporate influence over elections’
By Rebecca Klar
Sanders’s plan also calls for a constitutional amendment that “makes clear that money is not speech and corporations are not people.”
The amendment would aim to overturn two Supreme Court rulings that allow for unlimited spending in elections: Buckley V. Valeo and Citizens United.
He would also institute a lifetime lobbying ban for national party chairs and co-chairs, and ban the chairs and co-chairs from working for entities with federal contracts or that can “reasonably be expected to have business before Congress in the future.”
To enforce the laws, Sanders said he would “abolish the worthless FEC” and replace it with a Federal Election Administration (FEA).
The new FEA would have three members with a background in law or ethics enforcement, including former judges. Members would serve six years and the chair would serve 10 years to avoid one chair picking all members, according to Sanders campaign.
Hearings for violations of campaign finance laws would be conducted before an administrative judge and the FEA would be able to impose civil and criminal penalties for violations.
Sanders also pushes for mandatory public financing laws for federal elections, including a system of “Universal Small Dollar Vouchers” that give voting-age Americans the ability to “donate” to federal candidates. The plan does not say how much money would be given in the vouchers.
He also said FEA would determine the threshold candidates must meet to qualify for public financing.
His plan also calls for a ban on advertising during presidential primary debates.
Sanders said he’d also institute a lifetime lobbying ban for former members of Congress and senior staffers.
The States
Courthouse News Service: Watchdog Slams Order Allowing Nunes to Sue Twitter in Virginia
By Brad Kutner
A government watchdog group blasted a ruling that will keep a defamation lawsuit filed by California Congressman Devin Nunes against Twitter and several users in Virginia state court, warning it could chill free speech.
“It seems to say anybody from anywhere who’s defamed on the internet, on platforms that can be accessed anywhere in the country, can be sued and sue anywhere in the country even if it has nothing to do with the specific jurisdiction,” Paul Levy, a lawyer with Public Citizen Litigation Group, said in a phone interview. “Injury in Virginia is enough.”
Levy said federal courts had been moving the other way on the issue of personal jurisdiction in online defamation cases, and said he had previously expressed concerns about Nunes’s efforts to bring the defamation case in suburban Richmond court.
He pointed to Virginia’s weaker strategic lawsuit against public participation, or anti-SLAPP, laws, which makes it more costly to fight against defamation claims and can lead to chilled speech.
Nunes filed the complaint in Henrico County Circuit Court in March against Twitter, the anonymous parody accounts “Devin Nunes’ Mom” and “Devin Nunes’ Cow,” and political consultant Liz Mair…
Henrico County Judge John Marshall said in his Oct. 2 ruling that the posts were made and published in Virginia and the cause of action for defamation arose in Virginia. He also pointed to Twitter’s registered agent in the state, as well as the number of users that live there and the revenue the company pulls in locally as reasons to keep the case in his court.
“Since any internet platform is accessible anywhere, including Virginia, that means, I suppose, a Virginian could be sued in Alaska and an Alaskan can be sued in Virginia,” Levy said Monday night…
“Now, anybody, anywhere in the country, knows that if you criticize Devin Nunes, you can be sued in Virginia,” Levy said.
Legal Insurrection: Oberlin College hires high-powered D.C. lawyers to appeal Gibson’s Bakery verdict
By William A. Jacobson
Oberlin College just announced in an email blast that it not only is appealing the Gibson’s Bakery verdict, it has hired 1st Amendment litigators at the D.C. Office of a large national law firm to lead the appeal.
The email blast announcing the appeal was sent by Chris Canavan, Chair of the Oberlin College Board of Trustees. For most of the past decade Canavan also was Director, Global Policy Development, at Soros Fund Management, until leaving that position last month…
To recap, there were two verdicts: $11 million compensatory damages rendered on June 7, 2019, and $33 million in punitive damages rendered on June 13, 2019, after a separate punitive damages trial. The combined $44 million was reduced by the Court under Ohio’s tort caps to just over $25 million. The Court also awarded over $6.5 million in legal fees and costs against defendants on top of the damages. Defendants were required to post a $36 million bond to secure the judgment pending appeal.
Ever since the verdicts, Oberlin College has mounted an aggressive public relations campaign seeking to portray itself as the victim, asserting it was being unlawfully held liable for student speech…
The Jury Instruction on corporate liability focused on damages “caused by Oberlin College’s employees” (not students)…
Gibson’s Bakery also disputes Oberlin College public relations campaign claiming it was “held liable for the speech of its students”, releasing a detailed fact sheet.
